中国法域外适用体系的构建:立法模式与司法模式的理性审视与理论阐述

Construction of the Extraterritorial Application System of Chinese Law: Rational Examination and Theoretical Elaboration of Legislative and Judicial Models

实证研究表明,大规模造法运动的立法模式并不必然促进中国法域外适用体系的构建与强化。本文依托于“条约—互惠”关系这一语境,根据延伸效力的强弱对现有建构思路进行分析,归纳了立法模式效力和其制度风险,同时推导了人民法院运用司法手段等强效力路径所能到达的应然状态。对于前述应然状态与实际状况之间存在的如协作不够、态度保守、审查僵化等结构性难题,作者建议重新解读冲突法经典理论中“外国法院判决的承认与执行”的制度逻辑,充分借鉴执行攻坚期间积累的宝贵经验,利用递延启动域外判决审查,补强审查诉讼中对抗性,丰富审查结论等司法模式来间接扩张本国判决域外既判力。

The construction of a legal system for the extraterritorial application of Chinese law cannot be understood simply as a process of proliferation of foreign-related legal texts.Empirical research shows that large-scale law-making movements do not necessarily contribute to the strengthening of the extraterritorial binding power of Chinese norms.Based on the context of "treatyreciprocity" relationship,this article analyzes the existing construction ideas based on the strength of the extension effect,summarizes the weak extension effect and its institutional risks,and deduces the state of contingency that can be reached by the people’s courts through judicial means and other strong effect paths.With regard to the structural difficulties such as insufficient collaboration,conservative attitude and rigid review between the aforementioned state of contingency and the actual situation,the author suggests reinterpreting the institutional logic of "recognition and enforcement of foreign court judgments" in the classical theory of conflict of laws,fully drawing on the valuable experience accumulated during the enforcement campaign,and using deferral to initiate the review of extraterritorial judgments,the Court has also taken steps to indirectly expand the extraterritorial res judicata of national judgments and extend the extraterritorial effects of Chinese law by strengthening the adversarial nature of the review proceedings and enriching the review findings.